Citation Nr: 1124321
Decision Date: 06/27/11 Archive Date: 07/06/11
DOCKET NO. 10-36 647 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma
THE ISSUE
Entitlement to educational assistance under Chapter 33, Title 38, United States Code.
ATTORNEY FOR THE BOARD
W. Yates, Counsel
INTRODUCTION
The Veteran served on active duty from September 2006 to February 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.
The appeal is remanded to the RO via the Appeals Management Center in Washington, DC.
REMAND
The Veteran is seeking entitlement to educational benefits under Chapter 33, Title 38, United States Code (Post-9/11 GI Bill).
The Post-9/11 GI Bill was enacted under Pub.L. 110-252, Title V, § 5003(c), June 30, 2008, 122 Stat. 2375. See generally 38 U.S.C.A. §§ 3301-24 (West Supp. 2010); 38 C.F.R. § 21.9520 (2010).
In implementing this new law, VA promulgated 38 C.F.R. § 21.9520, which contains the minimum service requirements for eligibility for educational assistance under the Post-9/11 GI Bill. Generally, to be eligible for educational assistance benefits under the Post-9/11 GI Bill, an individual must have served on active duty for a minimum of 90 days after September 10, 2001. See 38 C.F.R. § 21.9520. The service requirement is also met by an individual who serves a minimum of 30 continuous days of active duty, and after completion of such service, is discharged under other than dishonorable conditions due to a service-connected disability. See 38 C.F.R. § 21.9520(b).
The Veteran's report of separation, Form DD 214, noted that he served on active duty from September 2006 to February 2007. The report of separation listed the
character of this service as uncharacterized, and recorded the narrative reason for the separation as "erroneous entry (other)." This information was confirmed by the Air Force Personnel Center in May 2010.
The Veteran contends that he was discharged from service due to a medical condition, and that it was processed as an entry level discharge because he had not yet served 180 days. He further argues that the re-entry code noted on his report of separation, 2C, confirms that he was involuntary separated from service with an honorable discharge. Finally, he submitted a March 2010 VA letter which listed his character of discharge as honorable.
Under these circumstances, additional development is needed in order to clarify the facts and circumstances surrounding the Veteran's period of military service from September 2006 through February 2007. Accordingly, the RO should obtain the Veteran's complete service personnel records file. Thereafter, the RO should associate the Veteran's service personnel file, along with his VA compensation claims file, with the record in this appeal.
In June 2010, the Veteran submitted a substantive appeal, VA Form 9, indicating that he desired to have a hearing scheduled before a Decision Review Officer at the RO. Prior to certification to the Board, "a claimant is entitled to a hearing at any time on any issue involved in a claim" under Part 3 of Title 38. 38 C.F.R. § 3.103(c) (2010). As there is no indication in the record that this hearing has been scheduled, or that the hearing request has been withdrawn, the RO should schedule the Veteran for the requested hearing. 38 C.F.R. § 20.700 (2010).
Accordingly, the case is remanded for the following actions:
1. The RO must attempt to obtain the Veteran's complete service personnel records file. The claims folder must document the efforts made to obtain these records along with any negative responses. If the
service personnel records cannot be obtained, a letter must be sent to the Veteran informing him of the steps taken to obtain the records, listing alternative sources, and requesting him to furnish any such records in his possession or to identify the possible location of such records.
2. The RO must associate the Veteran's VA compensation claims file with the record in this appeal.
3. The RO must then schedule the Veteran for a local hearing before an RO Decision Review Officer. The notification letter must inform him of the date, time and location of his hearing and a copy of the hearing notice letter must be placed in his claims file. If the Veteran fails to appear for the scheduled hearing, or otherwise indicates he no longer desires such a hearing, such must be documented in the record. If the hearing is conducted, a transcript of the hearing must be associated with the claims file.
4. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the RO must re-adjudicate the claim on appeal. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.
No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999).
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JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).